A Blunt Tool of Justice: The ICC’s Ongoing Challenges in Enforcing Accountability

Introduction

The International Criminal Court (“ICC”) is a beacon of justice in a world that is becoming increasingly plagued by international conflicts. The ICC as an independent international organization is established under the Rome Statute, exercising the mandate to prosecute and hold accountable perpetrators of the most serious crimes to the international community, even amid the escalation of armed conflicts and humanitarian crises worldwide. On the other hand, the complexity of its own laws makes it harder for it to hold people accountable. Resultantly, the international community continues to grapple complex legal challenges, including those arising from significant constraints rooted in the ICC’s legal foundation. Notably, Article 87, 89, and 98 of the Rome Statute make it very hard for the ICC to arrest suspects and bring them to trial. This raises concerns about the Court’s capacity to deliver justice and prevent impunity. 

To address international crimes, the ICC is authorised to issue arrest warrants for individuals suspected of committing crimes listed in Article 5 of the Rome Statute. These warrants are the primary instrument through which the Court exercises its judicial authority. Once a warrant is issued, they initiate further steps such as investigations and prosecutions, with general principles of criminal law applied throughout the trial process. A key example of the ICC’s use of arrest warrants occurred in March 2023, when it issued for Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, over war crimes related to the illegal deportation of Ukrainian children. Similarly, In November 2024 Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant faced allegations of war crimes and crimes against humanity for employing starvation as a method of warfare by restricting humanitarian aid to Gaza. These cases highlight the ICC’s efforts to transform legal authority into tangible accountability. Therefore, this article examines how Article 87, 89, and 98 of the Rome Statute create enforcement challenges that hinder the Court’s ability to fulfill its mandate and the urgent need for reform to strengthen the ICC’s ability to carry out its mandate.

The Rome Statute’s Foundational Framework and Inherent Challenges

The Rome Statute is the foundational treaty that established the ICC. It defines the Court’s jurisdiction, structure, and functioning, including its four main organs: the Presidency, the Chambers, the Office of the Prosecutor, and the Registry. It also delineates the circumstance where the ICC may intervene, primarily when national jurisdictions are unwilling or unable to prosecute serious crimes. It also delineates the circumstance where the ICC may intervene, primarily when national jurisdictions are unwilling or unable to prosecute serious crimes. The Statute’s principal objective is to establish a permanent international judicial body with the mandate to investigate, prosecute, and adjudicate individuals accused of crimes that are of the gravest concern to the international community, specifically genocide, crimes against humanity, war crimes, and, following a subsequent amendment, the crime of aggression. However, it is crucial to note that the ICC will generally refrain from intervening if a state is actively prosecuting the case, even if the proceedings are slow or imperfect, provided that the state is doing so in good faith. In this regard, the Court is designed to complement, rather than supplant, national judicial efforts, intervening only when the state is genuinely unable or unwilling to hold perpetrators accountable. Despite its establishment of a comprehensive legal structure, the Rome Statute still suffers from several deficiencies, including procedural inefficiencies, ambiguous provisions, and an overreliance on state cooperation for enforcement – which have drawn criticism and affected the Court’s credibility and effectiveness.

Article 87, 89, 98 and The ICC’s Enforcement Dilemma

Article 58 of the Rome Statute allows the ICC’s Pre-Trial Chamber to either issue an arrest warrant or a summons to appear before the Court upon the prosecutor’s request. This is permitted if there are reasonable grounds to suspect that the individual had committed a crime stipulated under Article 5 of the Rome Statute and if an arrest is necessary to ensure their appearance at trial, preventing an interference with the process, or stopping ongoing crimes. The prosecutor is required to outline the details of the alleged offences, the supporting evidence and the reasons for such an arrest. These arrest warrants remain valid until revoked and may be amended if new crimes are discovered. On the other hand, if arrest is unnecessary, a summons may be issued instead, requiring the person to appear voluntarily on a specified date.

Although the Court has the authority to issue warrants for arrest pursuant to Article 58, their enforcement is largely ineffective. This is evident in the Court’s difficulty to enforce Article 86 of the Rome Statute, which requires State Parties to fully cooperate with ICC investigations and prosecutions. The challenge becomes even greater when dealing with non-member states such as Russia and Israel, who are not parties to the Rome Statute. As a result, these states are under no legal obligation to cooperate with the ICC, significantly hindering the enforcement of its mandates. The failure of states to comply with their obligations under Article 86 of the Rome Statute significantly undermines the effective implementation of Article 87, which governs the Court’s authority to request cooperation, primarily from State Parties. Nevertheless, Article 87(5) empowers the ICC to seek cooperation from non-State Parties through ad hoc arrangements, bilateral agreements, or other applicable legal instruments. In cases where a state fails to cooperate, the Court may issue a formal finding of non-compliance, which can be referred to the Assembly of States Parties or, where appropriate, to the United Nations Security Council. Such referrals are typically accompanied by a report detailing the nature of the non-cooperation and its broader legal and procedural implications.

While Article 87 provides the general framework for cooperation, Article 89 specifically addresses the Court’s authority to request the arrest and surrender of individuals from any state where a suspect may be located, thereby creating a binding legal obligation on states to comply. However, this framework suffers from a critical structural deficiency which is the absence of effective enforcement mechanisms. In cases where states disregard Article 89 requests, the Court’s response is often limited to issuing diplomatic condemnation, lacking any coercive means to compel compliance. This enforcement gap underscores a deeper structural tension between binding legal obligations and the political realities of international cooperation. Without concrete enforcement tools, the ICC’s effectiveness remains vulnerable to the shifting interests of states, leaving the pursuit of international justice inconsistent and at times, unattainable.

The analysis of Article 87 and 89 leads to the critical role of Article 98, which introduces an additional layer of complexity to the ICC’s enforcement regime. This provision permits a state to decline arrest and surrender if executing such a request would require the state to act inconsistently with its obligations under international law, particularly those concerning diplomatic immunity or existing international agreements. However, while it is intended to respect international principles, Article 98 is frequently exploited by states to prevent the arrest of high-ranking officials, making ICC warrants remain unexecuted. As a result, Article 98 not only weakens the ICC’s authority but also enables impunity for powerful individuals within a state.

Problem of Inefficiency in Real Life

In September 2024, President Putin visited Mongolia to commemorate the Soviet-Mongolian military victory during World War II. The visit also marked the fifth anniversary of the Treaty on Friendly Relations and Comprehensive Strategic Partnership between Russia and Mongolia. Although Russia is not a state party to the Rome Statute, Mongolia is signatory with corresponding obligations under the treaty. Despite the ICC’s request for Putin’s arrest, Mongolia refrained from taking action, likely due to the diplomatic implications of such a move and potential consequences of sitting head of state within the context of their bilateral partnership. 

In October 2024, ICC Pre-Trial Chamber II reported Mongolia’s failure to comply with its obligations to the Assembly of State Parties. While the ICC can refer non-compliance cases to the Assembly, it lacks direct enforcement powers to compel state action. This limitation is further intensified by Article 98 of the Rome Statute, which addresses conflict between ICC obligations and international laws on diplomatic immunity. As President of Russia, Putin benefits from such immunity, making his arrest unlikely. Although it is theoretically possible for a third state to waive this immunity, political realities render such cooperation; particularly involving high-ranking officials which is highly improbable.

Moreover, this is not an isolated instance. Previous cases have similarly demonstrated the ICC’s enforcement limitations, with the case of Sudan’s former President Omar Al Bashir serving as a clear example of these structural weaknesses, highlighting two major issues in the Rome Statute, specifically: (a) the lack of consequences for states in breach and (b) the immunity and cooperation exemptions are made unclear.

a. Absence of Legal Consequences

The Al-Bashir case further highlights how the ICC’s structure creates problems. Between 2003 to 2008, the ICC issued an arrest warrant against President Al-Bashir for war crimes, crimes against humanity, and genocide charges carried out in Darfur. Despite the warrants, President Al Bashir remained free for years as multiple ICC member states failed to arrest him, showing the lack of competence the ICC has to bring President Al-Bashir to The Hagues. However, if the President travels to a member state of the ICC, the ICC would undoubtedly have the authority to arrest him, as member states are obligated to cooperate with the Court. The Court also lacks alternative enforcement mechanisms to address its inability to arrest President Al-Bashir or to demand cooperation from state parties and non-member states regarding arrest requests. This absence of coercive powers undermines the Court’s effectiveness and may result in impunity for perpetrators. 

b. Ambiguity in Immunity and Cooperation

The provisions addressing immunity and exemption from cooperation in Article 98 were ambiguous. From the case of President Al-Bashir, he once traveled to Chad and Kenya, in which both states are members of the African Union (“AU”). Subsequently, when the ICC requested the AU’s cooperation for the arrest of President Al-Bashir, both states refused, invoking Article 98 to justify its refusal, claiming that President Al-Bashir possessed diplomatic immunity in his capacity as the head of a state. Justification effectively shields him from any prosecution by the Court. Although Article 27 of the Rome statute explicitly states that heads of state are not immune from the ICC’s jurisdiction; however, it does not specify whether this provision applies exclusively to the members of states or to all individuals within the Court’s jurisdiction. Therefore, both articles create a contradiction within the Rome statute as Article 27 explicitly states the non-existence of immunity for the head of the state, and on Article 98 it recognises such diplomatic immunity. 

Moreover, as Chad and Kenya are members of the AU, both states further maintained the use of article 98 (2) which allows states to refuse cooperation requests from the Court when they have prior agreements, lawfully refusing the Court’s request for cooperation regarding the indictment of President Al-Bashir. This case reveals the lack of clarity in the statute provisions, as certain states can turn the Rome Statute’s own provisions against the ICC, creating legal loopholes that harm its effectiveness.

Conclusion 

The challenges faced by the ICC in prosecuting figures such as Putin and Netanyahu are intricately linked to the provisions set forth in Articles 87, 89, and 98 of the Rome Statute. These provisions create significant legal gaps, enabling both member and non-member states to evade their obligations to surrender individuals to the Court. Article 98, in particular, introduces a notable legal gap by addressing immunity, which allows states to potentially shield individuals from complying with the ICC’s requests for cooperation. Given that the Rome Statute is a multilateral treaty binding only on its contracting parties, the Court struggles to assert its jurisdiction over non-member states, thereby introducing uncertainty and impeding the effective prosecution of international perpetrators. Consequently, Articles 87, 89, and 98 function as critical loopholes, providing opportunities for individuals to avoid accountability for their alleged crimes. This reliance on state cooperation, compounded by the gaps in the statutory framework, undermines the ICC’s ability to enforce its mandate and deliver justice consistently.

The matter at hand also concerns how the ICC is not a subsidiary body of the United Nations, which significantly limits its authority to enforce cooperation and override state immunity. Although the ICC holds broader jurisdiction than ad hoc tribunals like the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) or International Criminal Tribunal for Rwanda (“ICTR”), perpetrators may still evade accountability. Unlike the ICTY and ICTR, which were both established under Article 41 of the United Nations Charter (“UN CHARTER”) and backed by the Security Council enforcement, the ICC operates as a treaty-based body. As such, it only binds its contracting parties. The universal membership of the UN and the binding nature of Security Council decisions under Article 25 allowed the ICTY and ICTR to override state immunity. In contrast, the ICC depends on state consent, either through ratifying the Rome Statute or accepting jurisdiction ad hoc, in order to exercise authority over non-party states. In line with this, if a head of state invokes immunity as the head of the state, yet is subject to arrest warrants by ICC, states must give consent to the court to lift such immunity– either by being a contracting party of the rome statute or according to the jurisdiction of the ICC on an ad hoc basis. Thus, the prosecution can continue if the Court has lifted their immunity.

Therefore, it would be advisable to amend Article 98 in order to clarify and strengthen its provisions about immunity. This amendment shall contain a clear sanction to prevent states from excusing cooperation. As mentioned in Fordham Law journal regarding the ineffectiveness of ICC, Article 98 of the Rome statute shall include the option to suspend and the option to expel a member state for breaching the provision. While expulsion may be considered as a drastic measure, it could serve as an alternative when suspension proves to be insufficient to ensure the effectiveness of Article 98.